United States District Court, W.D. Texas, Austin Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
W. AUSTIN UNITED STATES MAGISTRATE JUDGE.
HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE
Magistrate Judge submits this Report and Recommendation to
the District Court pursuant to 28 U.S.C. §636(b) and
Rule 1(f) of Appendix C of the Local Court Rules. Defendants
removed this action from state court and move to dismiss the
case. Plaintiff did not file a response.
OF THE CASE
time he filed his complaint, Plaintiff was confined in the
Polunsky Unit of the Texas Department of Criminal Justice -
Correctional Institutions Division. He complains of the
conditions of his confinement in the Burnet County Jail in
2013. He additionally complains of an Order to Withdraw Funds
issued by a Burnet County judge in November 2018 which the
clerk of court mailed to the TDCJ - Inmate Trust Fund
Department for collection. Defendants move to dismiss as
time-barred Plaintiff's claims regarding his 2013
confinement. Defendants further move to dismiss
Plaintiff's claim regarding the Order to Withdraw for
failure to state a claim upon which relief can be granted.
Standard Under Rule 12(b)(6)
Rule of Civil Procedure 8(a)(2) requires a complaint to
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). A motion under Federal Rule of Civil
Procedure 12(b)(6) asks a court to dismiss a complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). To survive a motion to
dismiss, the plaintiff must plead sufficient facts to state a
claim for relief that is facially plausible. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Iqbal, 566 U.S. at 678. Although a plaintiff's
factual allegations need not establish that the defendant is
probably liable, they must establish more than a “sheer
possibility” a defendant has acted unlawfully.
Id. Determining plausibility is a
“context-specific task, ” and must be performed
in light of a court's “judicial experience and
common sense.” Id. at 679.
deciding a motion to dismiss under Rule 12(b)(6), a court
generally accepts as true all factual allegations contained
within the complaint. Leatherman v. Tarrant Narcotics
Intelligence & Coordination Unit, 507 U.S. 163, 164
(1993). However, a court is not bound to accept legal
conclusions couched as factual allegations. Papasan v.
Allain, 478 U.S. 265, 286 (1986). Although all
reasonable inferences will be resolved in favor of the
plaintiff, the plaintiff must plead “specific facts,
not mere conclusory allegations.” Tuchman v. DSC
Commc'ns Corp., 14 F.3d 1061, 1067 (5th Cir. 1994).
In deciding a motion to dismiss, courts “must
consider” the complaint, as well as other sources such
as documents incorporated into the complaint by reference and
matters of which a court may take judicial notice.
Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
551 U.S. 308, 322 (2007).
Statute of Limitations
is no federal statute of limitations for § 1983 actions.
Piotrowski v. City of Houston, 51 F.3d 512, 514 n.5
(5th Cir. 1995); Henson-El v. Rogers, 923 F.2d 51,
52 (5th Cir. 1991), cert. denied, 501 U.S. 1235
(1991). Therefore, the Supreme Court has directed federal
courts to borrow the forum state's general personal
injury limitations period. Owens v. Okure, 488 U.S.
235, 249-50 (1989). In Texas, the applicable limitations
period is two years. Moore v. McDonald, 30 F.3d 616,
620 (5th Cir. 1994) (citing Tex. Civ. Prac. & Rem. Code
Ann. § 16.003(a) (Vernon 1986)). Nevertheless, federal
law determines when a § 1983 cause of action accrues.
Gartrell v. Gaylor, 981 F.2d 254, 257 (5th Cir .
1993). A cause of action under § 1983 accrues when the
aggrieved party knows, or has reason to know of, the injury
or damages which form the basis of the action.
Piotrowski, 51 F.3d at 516.
claims regarding the conditions of his confinement accrued in
2013. Plaintiff did not file his complaint until 2019, long
after the expiration of the limitations period. Accordingly,
Plaintiff's claims regarding the conditions of his
confinement are time-barred.
Order to Withdraw Funds
complains Burnet County District Clerk, Casie Walker,
unconstitutionally imposed a bill of cost or assessed fees
and sent them out to the Texas Department of Criminal Justice
-Correctional Institutions Division with instructions to
withdraw from the plaintiff's trust fund account.
Plaintiff alleges he was not provided notice or a hearing
before the order was issued, and as a result, he was denied
due process. The Order to Withdraw Funds ...